Remand and service connection

[SPO]

I’m in line for an appeal and confused on the remand process.  I was denied because a c&p examiner changed  my diagnosis from arthritis to strain on some joints and said no diagnosis on others.  My file has at least 2 doctors (more qualified than the c&p examiner) stating my arthritis diagnosis in the joints I claimed.  Also I was granted for my back and hip.  I imagine if I win it will get a remand, but if it does can the board order the RO the service connection is granted and they need to perform another exam to properly rate severity? Or is service connection up to the RO to decide on again?

[GBArmy]

SPO It would be my guess that if it were remanded, the RO would have to re-do the exam because they would want to determine at the very least if your conditions/symptoms have gotten better or worse IMHO. I would also assume that if you "won", the court could rule either way. That is, they could determine it was s-c, or, they could send it back. Who knows.

[SPO]

I realized that I didn't specifically say on the NOD that I think the exam was inadequate, and the rating % will likely be inaccurate because of that if service connection is granted. I just said denial of service connection was the issue. Is there a point when they need that specific information as to what I disagree with, or can I bring all that up in the hearing and they will adjust their decision to match?  Also,  if sc is granted, does it go back to the RO with instructions that I need a new exam?  I know this is a lot of what if.

[pacmanx1]

If your claim is at the BVA(Board of Veterans Appeals) they can either grant, deny or remand your claim. In your case they should either grant or remand your claim. Keep in mind that even if the BVA grants your claim it will still have to go back to the VARO to rate and that may include a new C & P exam. The C & P exams are not only to determine if a condition is military related, but they are also for determining how severe the condition is and how it should be rated.  The same thing with a remand, the VARO may send you to a new C & P exam. Now if they deny your claim, you will have to appeal to the CAVC. 

 

[pacmanx1]

3.102 Reasonable doubt.

§ 3.102 Reasonable doubt.

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships.

[broncovet]

Claims are rated in the following order:

1.  Service connection or no.  If you are not sc, there is no need to determine a disability percentage or effective date. 

2.  Disability percentage, if SC. 

3.  Effective date.  

     The VA wont do these out of order.  

      When the VA sends you to an examiner, they pick the examiner, and this examiner is "presumed competent" absent your challenge.  You can challenge the competency of an examiner, but, if you dont, he is presumed competent.  

     "If" you go to the BVA and the board "picks" one or more examiners opinion, over the others, he must give a reason why.  For example, the board may opine that examiner "A" is more thorough, for example, because he has seen you 10 years, and another doc saw you for 10 minutes.  They can also decide one exam was more thorough because he administered tests and the other did not do so.  

      If you are remanded from the board, the RO should comply.  Did the remand order call for a new exam?  What did the BVA remand say?  Did they say the exam was inadequate or incomplete?  

[SPO]

I have not gotten an appeal decision yet.  I was just confused how the issue would be handled.  By that I mean if the board were to grant service connection or a remand.  This is my first appeal to the board.